Opinion 22-131


September 8, 2022


Digest:         A town justice who is also a court clerk in family court may not preside over a justice court criminal case, where the defendant is also a party in a family court action involving similar allegations and the town justice previously heard allegations or testimony pertaining to that case in family court.


Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(A); 100.3(E)(1); 100.6(B)(4); Opinions 19-12; 19-05; 18-23/18-56; 16-43.




         The inquiring part-time town justice is also employed as chief clerk in family court for the same county. Defendants who appear in town court may also appear in family court proceedings, and allegations made in family court concerning neglect and abuse, family offenses, or child custody and visitation may overlap with allegations made in supporting depositions and accusatory instruments in the town court. The judge asks if it is ethically permissible to preside in a town court criminal case, where the judge previously “clerked in Court for the Family Court Judge” and thus heard allegations or testimony relevant to that case in family court.


         A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). Although a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a part-time judge may nonetheless maintain public employment that is not incompatible with judicial office and does not interfere with proper performance of judicial duties (see 22 NYCRR 100.6[B][4]). A judge must not “allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]) and must disqualify in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).


         We have said that a judge who acquires knowledge of a party, attorney, or witness in the course of their judicial duties, rather than from an extra-judicial source, may preside in other cases involving the same individual, provided the judge can be fair and impartial (see e.g. Opinions 19-05; 16-43). However, this standard is not applicable where a judge obtains knowledge of a party in their non-judicial capacity. Thus, we advised that a part-time justice who also serves as a court attorney in a superior court “may not preside in a town court case involving a party who previously appeared before him/her as a court attorney in superior court for a pretrial conference of a family court matter” (Opinion 19-05).


         Here, too, the judge received information in a non-judicial capacity when they listened to allegations and testimony in the superior court case while clerking in court for the family court judge in the course of their employment as a non-judicial court employee. Where the judge was not insulated from the case in family court, the judge is disqualified from presiding “in any justice court case involving a party to the family court proceeding” (id.).


         Going forward, we recommend a similar approach as set forth in Opinion 19-05, although we now require disclosure. Thus, on learning that a defendant in town court is also a party in a family court case, the town justice “should determine whether or not he/she has had any involvement in the defendant’s superior court case” (Opinion 19-05). Where the judge “has acquired no information concerning the defendant in his/her capacity as” chief clerk, the judge must disclose the connection to the parties but thereafter may preside in the defendant’s town court case, assuming the judge can be fair and impartial (id.). The town justice should also “advise the superior court judge of the defendant’s justice court case” and “ask to be insulated from the superior court proceeding” (id.).1











1 For completeness, we note there may be other instances in which the judge should ask to be insulated in family court. While it seems unlikely that a family court case could ever be said to “originate” in the town court, a town justice who is also a court employee in a superior court must be permanently insulated in the superior court from all matters “originating” in the town court in which the judge presides (Opinions 19-12; 19-05; cf. Opinion 18-23/18-56 [town justice who is also a superior court law clerk may preside in criminal cases returned to the town court, provided they were properly insulated as a law clerk]). We have also advised that “if the justice has already handled a town court case involving a particular defendant, he/she must be insulated as a court attorney from any subsequent family court matter involving that defendant” (Opinion 19-05).